Can People in Cities Govern Directly? Not Sure, but I’m Skeptical States Should Decide

If you live in Seattle, or have visited lately, as I did last May, it is hard to ignore the depth of the crisis of the unhoused that the city and the larger metro King County metro area face. I don’t purport to know the right answer—my instincts tend toward a housing-first approach, and toward reforms to foster more production of housing, all things being equal. But the crisis prompted a fight over amending Seattle’s charter, resolved this past week when King County Superior Court Judge Catherine Shaffer struck a proposed ballot initiative from this coming fall’s election, that raises the question whether the city or the state should decide about the scope of local direct democracy, a question playing out in a number of cities at the moment.

The proposed Charter Amendment 29 initiative was the work of an organization called Compassion Seattle, formed and funded by the Downtown Seattle Association and local chambers of commerce. Among other changes, Amendment 29 would have enshrined in the City Charter an obligation to prioritize services to those unhoused in Seattle, mandated the production of 2,000 units of service-oriented housing within a year (in a city that currently produces about 10,000 units of new housing overall), empowered the city to waive land-use requirements on an emergency basis to speed the construction of new housing, and authorized sweeps of encampments. The proposed initiative drew a challenge from the Seattle/King County Coalition on Homelessness, the ACLU of Washington, and the Transit Riders Union, with the ACLU arguing that the initiative would “enshrine Seattle’s current ineffective and harmful practice of sweeping unhoused residents and their homes from public places into the City’s Charter, while doing nothing to meaningfully address homelessness.”

In her August 30th ruling, Judge Shaffer called on a long-standing body of law in Washington State that essentially holds that if the state has delegated any local power to a specific local governing institution—such as a city council—that power cannot be exercised by initiative. As Judge Shaffer noted, the Washington Supreme Court has held that “the people cannot deprive the city legislative authority of the power to do what the constitution and/or a state statute specifically permit it to do.” Applying this principle, Judge Shaffer found that the proposed initiative would interfere the Seattle City Council’s power over land use and zoning, budgeting, planning for people who are unhoused, and a variety of matters that the City Council had moved into the administrative, rather than legislative, realm, most notably cooperation with King County through an inter-local agreement.

For “first class” cities such as Seattle, the Washington Constitution authorizes direct democracy and the state legislature has, in turn, provided in Revis